Political Background and separation of Powers Katarzyna Gromek Broc Katarzyna Gromek Broc.

Political Background and Political Background and separation of Powers separation of Powers

Katarzyna Gromek BrocKatarzyna Gromek Broc

A) Political background and A) Political background and separation of powersseparation of powers

B) Role of the courts and judgesB) Role of the courts and judges

C) Tension between Parliament C) Tension between Parliament and the courtsand the courts

A: Political backgroundA: Political background

Ca you give examples of forms of Ca you give examples of forms of governance? governance?

… … and in the UK?and in the UK?

Political backgroundPolitical background

What does it mean to be democratic?What does it mean to be democratic?

democracy


What forms of governance do you know?What forms of governance do you know?

democracy

Representative democracy


What forms of governance do you know?What forms of governance do you know?

Representative democracy

Legislative and executive bodies are expression of the will of the people through free election and elected government represents the interests of all people through elected representatives

Political BackgroundPolitical Background

Any problems with representative Any problems with representative democracy within the UK system? Any democracy within the UK system? Any limitations?limitations?

Representative democracy in the UK

Political BackgroundPolitical Background

Any problems with representative Any problems with representative democracy within the UK system? Any democracy within the UK system? Any limitations?limitations?

Representative democracy in the UK

Monarch, the House of Lords andJudiciary are unelected

Undue influence of the civil service on the Government decision-making

Government lacks of transparency, disposesPowers coming from the Monarch that do not

Necessitate parliamentary approval (RoyalPrerogative)

The separation of powersThe separation of powers

What is its purpose?What is its purpose?


What is its purpose?What is its purpose?

It protects democracy, liberty avoiding tyranny ● Indispensable for the organisation of the State, and the Constitution

● It prescribes the appropriate allocation of powers, the limits of those powers to differing Institutions

●Ideally, there should be a clear demarcation line between the legislative, the executive and the judiciary

● none of them should have excessive power and there should be a system of checking if a correct balance is maintained between those three bodies


The idea was designed to ensure that The idea was designed to ensure that functions, personnel and powers are not functions, personnel and powers are not concentrated in one body in order to avoid concentrated in one body in order to avoid abuse of power to protect the rights and abuse of power to protect the rights and liberties of the citizens.liberties of the citizens.


Montesquieu argued that, ‘there can be no liberty and there would be an end of everything ‘if the legislative, executive and judicial powers of government were to be exercised by the same person or authority’

The separation of powersThe separation of powers Problem with Parliamentary Problem with Parliamentary

democracies: democracies: It is hard to say that they It is hard to say that they have distinct separation of powers. (weak, have distinct separation of powers. (weak, limited, or fusion of powers)limited, or fusion of powers)

The The executive (often a prime minister)executive (often a prime minister) and the and the Cabinet ("government")Cabinet ("government") are are drawn from the legislature (drawn from the legislature (parliamentparliament). ).

UK: UK: a system of checks and balances a system of checks and balances which ensures that powers are not which ensures that powers are not abused.abused.


The executive The executive formulates policy and it is formulates policy and it is responsible for its execution.responsible for its execution.

Crown

Government

Civil service,Armed forces

And police


The legislatureThe legislature Parliament comprises Parliament comprises the Queen, House the Queen, House

of Lords and House of Commonsof Lords and House of Commons. All . All Bills must be passed by each House and Bills must be passed by each House and receive the royal assent. receive the royal assent.

The The House of LordsHouse of Lords not elected and not not elected and not accountable to the electorate. accountable to the electorate.

In contrast In contrast House of CommonsHouse of Commons is directly is directly electedelected


The judiciaryThe judiciary

The The judicial independencejudicial independence is of crucial is of crucial importance in relation to government importance in relation to government according the law and in protection of according the law and in protection of citizens’ liberty against the executive. citizens’ liberty against the executive.

Constitutionally Constitutionally judges are subordinate judges are subordinate to Parliamentto Parliament and have no power to and have no power to challenge the validity of Act of Parliament. challenge the validity of Act of Parliament.

Separation of PowersSeparation of Powers

The executive The executive overlaps with the overlaps with the legislaturelegislature, (the Prime , (the Prime Minister, the chief executive, must by convention be a Minister, the chief executive, must by convention be a Member of the House of Commons. Member of the House of Commons.

JudiciaryJudiciary also overlapped with also overlapped with legislature till 2009legislature till 2009: the Law : the Law Lords, final arbiters of judicial disputes, sit simultaneously Lords, final arbiters of judicial disputes, sit simultaneously in the House of Lords, the upper house of the legislature, in the House of Lords, the upper house of the legislature,

The head of the judiciary till 2009 (the The head of the judiciary till 2009 (the Lord ChancellorLord Chancellor was was a member of all three branches of government (was a member of all three branches of government (was Cabinet Minister): he is a member of Cabinet Minister): he is a member of the House of Lordsthe House of Lords

This ceased in 2009 when the Supreme Court of the United This ceased in 2009 when the Supreme Court of the United Kingdom came into existence. Kingdom came into existence.

Principal overlaps Principal overlaps

Personnel:Personnel: Government ministers sit in House of Government ministers sit in House of

Commons (95), others in House of LordsCommons (95), others in House of Lords Functions:Functions: Government ministers direct the activities of Government ministers direct the activities of

central government, exert control over central government, exert control over timetable, business and legislative output, timetable, business and legislative output, the government legislates in form of the government legislates in form of regulations (Order in Council)regulations (Order in Council)

Checks and balancesChecks and balances

Limitation on the executiveLimitation on the executive - ministers by convention are forced to resign- ministers by convention are forced to resign - control over government ministers:review of - control over government ministers:review of

the delegated legislation by the courts vie the delegated legislation by the courts vie ultra vires ultra vires

Ministers respond to electorateMinisters respond to electorate The House of Lords retains the power to veto The House of Lords retains the power to veto

any Bill purporting to extend the life of any Bill purporting to extend the life of ParliamentParliament

Checks and BalancesChecks and Balances

Limitations on ParliamentLimitations on Parliament Parliament is not a unified body: Parliament is not a unified body:

cooperation and compromise between cooperation and compromise between political partiespolitical parties

The Composition of House of Commons The Composition of House of Commons is determined by electorateis determined by electorate

Acts of Parliament are subject to judicial Acts of Parliament are subject to judicial interpretationinterpretation

Checks and balancesChecks and balances

JudiciaryJudiciary Judicial decisions may be modified and rendered Judicial decisions may be modified and rendered

ineffective by legislationineffective by legislation Potential dismissal of a judge resides in Potential dismissal of a judge resides in

Parliament (both Houses)Parliament (both Houses) Magistrates, circuit judges, High Court and Court Magistrates, circuit judges, High Court and Court

of Appeal are disqualified from the membership in of Appeal are disqualified from the membership in the House of Commonsthe House of Commons

By convention, House of Commons does not By convention, House of Commons does not criticise judges.criticise judges.

Checks and BalancesChecks and Balances

Judiciary:Judiciary: Judges are immune from all civil liability in Judges are immune from all civil liability in

respect of what was said in the Courtrespect of what was said in the Court By convention judges do not participate in By convention judges do not participate in

political activities and do not express political activities and do not express publicly their viewspublicly their views

The Judiciary: Judges as legislatorsThe Judiciary: Judges as legislators

One of the most debatable question One of the most debatable question related to the relationship between the related to the relationship between the legislature and the judges is: legislature and the judges is:

‘ ‘Do judges make law?’Do judges make law?’


Constitutional Law: the question is Constitutional Law: the question is whether by creating the law either by whether by creating the law either by interpretation of statutes or through the interpretation of statutes or through the doctrine of precedence, the judges are doctrine of precedence, the judges are appropriating the legislative function, appropriating the legislative function, violating the separation of powers?violating the separation of powers?


Judges’ function is to Judges’ function is to interpretinterpret legislation in line legislation in line with the intention of Parliament and to contribute with the intention of Parliament and to contribute to the to the development of the common lawdevelopment of the common law (judge (judge made law). made law).

The previous cases (precedence) should guide The previous cases (precedence) should guide judges in making their decisions. Law that has judges in making their decisions. Law that has been developed by judges in this way is called been developed by judges in this way is called Common Law as opposed to Statute Law (laws Common Law as opposed to Statute Law (laws passed by Act of Parliament)passed by Act of Parliament)

C: Tension between Parliament C: Tension between Parliament and the courts and the courts

In the centre of the In the centre of the supremacy debate is supremacy debate is the Relationship the Relationship between courts and between courts and Parliament.Parliament.

Supremacy of Supremacy of parliament excludes parliament excludes judicial review of judicial review of primary legislation.primary legislation.

C: Tension Parliament/ CourtsC: Tension Parliament/ Courts

Parliament’s view:Parliament’s view: Judges should be wary of substituting their own Judges should be wary of substituting their own

judgements of morality for those of ministers or judgements of morality for those of ministers or officials who enjoy discretionary powers officials who enjoy discretionary powers conferred by the elected majority.conferred by the elected majority.

Judges’ view : rights based approachJudges’ view : rights based approach The common law is not totally subservient to the The common law is not totally subservient to the

will of Parliament but there are higher will of Parliament but there are higher constitutional values and rights which require the constitutional values and rights which require the protection by the courts.protection by the courts.

ConclusionConclusion

Role of the judiciary has expandedRole of the judiciary has expanded Judges have great scope to develop principles Judges have great scope to develop principles

of democracy, good governance of democracy, good governance Increasing powers granted by Parliament which Increasing powers granted by Parliament which

confirmed the constitutional role of the courtsconfirmed the constitutional role of the courts Judges are subtly altering the constitutional Judges are subtly altering the constitutional

balance becoming co-equal with Parliament.balance becoming co-equal with Parliament.

Follow-up taskFollow-up task Can you read a note on Can you read a note on Magor and St Magor and St

Mellons RDCMellons RDC [1952] case? [1952] case?

Political Background and separation of Powers Katarzyna Gromek Broc Katarzyna Gromek Broc.

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